9th Circuit Rejects Trump’s Arguments and Leaves Restraining Order Against Muslim Ban In Place

Major defeat for President Trump


The 9th Circuit Court of Appeals dealt a serious blow to Donald Trump’s ban on immigration from seven Muslim-majority countries on February 9th when a three-judge panel upheld a restraining order blocking the Muslim Ban.

The Trump administration had contended that the courts have no authority to review his immigration executive order. The judges slapped that line of reasoning down, saying “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.” The fact that the Constitution has established a system of checks and balances restraining autocratic behavior by presidents is a lesson President Trump is only learning at the age of seventy.

The court also rejected President Trump’s contention that immigrants don’t have due process rights. The court said that “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they ‘appl[y] to all ‘persons’ within the United States, including aliens,’ regardless of ‘whether their presence here is lawful, unlawful, temporary, or permanent.’ These rights also apply to certain aliens attempting to reenter the United States after travelling abroad.”

The Trump adminstration argued that when it created an exception to the ban for returning permanent residents several days after the executive order was issued, it eliminated the only category of people from the seven countries protected by the Fifth Amendement. The 9th Circuit disagreed, saying that, “Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfull; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart; refugees; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.”

The court’s decision, which can be read here, is a unanimous rejection of the illegal actions of President Trump. The court said that the Trump administration “has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” In other words, the executive order was not designed to meet any real threat.

The court also dismissed the Trump administration’s argument that a discretionary waiver that banned Muslims could apply for ameliorated aspects of the executive order. According to the 9th Circuit, “The Government suggests that the Executive Order’s discretionary waiver provisions are a sufficient safety valve for those who would suffer unnecessarily, but it has offered no explanation for how these provisions would function in practice: how would the “national interest” be determined, who would make that determination, and when? Moreover, as we have explained above, the Government has not otherwise explained how the Executive Order could realistically be administered only in parts such that the injuries listed above would be avoided.” In other words, the discretionary waiver is a cobbled together piece of nonsense and even the president’s lawyers could not explain how it works.

The president tweeted after the decision was released:




Of course, he was just in court and lost!

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Patrick Young blogs daily for Long Island Wins. He is the Downstate Advocacy Director of the New York Immigration Coalition and Special Professor of Immigration Law at Hofstra School of Law. He served as the Director of Legal Services and Program at Central American Refugee Center (CARECEN) for three decades before retiring in 2019. Pat is also a student of immigration history and the author of The Immigrants' Civil War.

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